Attorney General Moves to Force Immigration Courts to Decide Cases

May 18, 2018

NPR reports on an important development in the nation’s immigration courts. Exercising the rarely-used power of referring a Board of Immigration Appeals (BIA) ruling to the Attorney General, Attorney General Jeff Sessions has ordered the nation’s immigration judges to end their practice of temporarily removing cases from their dockets without issuing decisions. The immigration courts and the BIA are part of the Department of Justice.

Immigrant advocates say the move is part of a broader strategy to influence the immigration courts, which fall under the purview of the Department of Justice, in order to hasten the removal of some immigrants.

As NPR’s Joel Rose reports, the practice is known as “administrative closure.”

“It’s been a lifeline for tens of thousands of immigrants who are applying for visas or green cards, which can take years. So immigration judges will sometimes close their cases to let those applications play out, effectively putting deportations on hold.

“But critics say judges have allowed those immigrants to stay in the country longer than they should have.”

Sessions is the most prominent critic of administrative closures. In January, he took the unusual action of directing the Board of Immigration Appeals to refer an immigration case to himself for review. That case is called the M atter o f Castro-Tum and involves a Guatemalan citizen who failed to show up at five scheduled immigration hearings. The immigration judge ordered an administrative closure, in effect, delaying the case, because he concluded that the government’s efforts to send hearing notices to the respondent’s correct address were inadequate.

In an opinion and order issued late Thursday, Sessions said “the current practice of administrative closure lacks a valid legal foundation.”

“Immigration judges and the Board have come to rely upon administrative closure without thoroughly explaining their authority to do so. Unlike the power to grant continuances, which the regulations expressly confer, immigration judges and the Board lack a general authority to grant administrative closure. No Attorney General has delegated such broad authority, and legal or policy arguments do not justify it. I therefore hold that immigration judges and the Board lack this authority except where a previous regulation or settlement agreement has expressly conferred it.”

In his order, Sessions acknowledged that reactivating cases that are currently administratively closed “would likely overwhelm the immigration courts and undercut the administration of immigration laws.” So he ordered all administratively closed cases to “remain closed unless DHS (Department of Homeland Security) or the respondent requests recalendaring.”

As Reuters reports, administrative closures ramped up under the Obama administration to more than 200,000 cases. There was already a backlog of more than 650,000 cases in immigration courts as of January 2018.

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